UNITED STATES OF AMERICA, Appellee, v. JOHN AFRIYIE, Defendant-Appellant.
Docket No. 20-2269-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 25, 2022
August Term, 2021
(Argued: October 19, 2021)
Before: CALABRESI, POOLER, and PARKER, Circuit Judges.
Appeal from a judgment of the United States District Court for the Southern District of New York (Engelmayer, J.), directing restitution of $511,368.92 under the Mandatory Victims Restitution Act,
Affirmed in part, vacated and remanded in part.
ROBERT A. CULP, Garrison, NY, for Defendant-Appellant.
EDWARD A. IMPERATORE, Assistant United States Attorney (Christine I. Magdo, Thomas McKay, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
The Mandatory Victims Restitution Act (“MVRA”) requires defendants convicted of certain crimes to reimburse their victims for “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”
A decade later, in Lagos v. United States, the Supreme Court adopted a “more limited interpretation” of the MVRA. 138 S. Ct. 1684, 1690 (2018). Expressly abrogating Amato’s second holding, Lagos held that “the words ‘investigation’ and ‘proceedings’ are limited to government investigations and criminal proceedings.” Id. at 1687.
The appeal before us raises two issues of law prompted by Lagos: first, whether Amato’s primary holding—that attorneys’ fees can sometimes be “other expenses”—survives Lagos; and second, whether a victim can recover expenses incurrеd while participating in a Securities and Exchange Commission investigation of the defendant.
We answer yes to the first question and no to the second. Lagos abrogated Amato only to the extent it awarded restitution for private investigatory expenses. It remains the law of this Circuit that “other expenses” may include attorneys’ fees, provided the statute’s other strictures are met. Lagos, however, instructs us to read narrowly the MVRA’s requirement that expenses arise from a victim’s “participation in the investigation or prosecution of the offense.”
On these bases, we affirm in part and vacate in part the restitution order in this
We affirm as to Sullivan & Cromwell’s involvement in the criminal investigation, the preparation of trial witnesses, and the restitution proceedings. These expenses arose from Afriyie’s criminal “investigation or prosecution,”
BACKGROUND
This is our third appeal arising from Afriyie’s insider trading. See United States v. Afriyie, 929 F.3d 63 (2d Cir. 2019) (“Afriyie I”); SEC v. Afriyie, 788 F. App’x 59 (2d Cir. 2019). To briefly summarize what brought us here: In January 2015, MSD hired Afriyie, a 2010 Cornell graduate, as an investment analyst. Afriyie’s job at MSD was to research potential investments and make recommendations about those investments. He received trainings regarding MSD’s policies against insider trading and the safekeeping of confidential client information. MSD rules prohibited him from trading in individual securities from his own brokerage account.
In January 2016, MSD was approached by Apollo Global Management, a private equity firm looking to fund an acquisition of ADT Corporation, the home security and alarm company. After MSD expressed interest in investing, Apollo gave MSD material nonpublic (i.e., inside) information about the deal. On January 27, 2016, MSD’s compliance department sent a “potential restriction” email to its investment professionals, including Afriyie. Afriyie I, 929 F.3d at 66. The email indicated that MSD would receive inside information about а potential deal involving a “U.S. listed alarm monitoring services company” because of a “financing opportunity in connection with a potential take-private transaction by . . . Apollo Global.” Id.
The next morning, even though he was not assigned to work on the ADT deal, Afriyie accessed the ADT and Apollo folders on MSD’s shared drive. He then bought an ADT call option. That afternoon, MSD added ADT to its list of “restricted” securities. Id. Afriyie received an email saying so. Over the next two weeks, in violation of both company policy and federal securities laws, Afriyie bought two thousand more ADT call options for around $25,000. On February 16, the day Apollo publicly announced the ADT acquisition, ADT’s stock jumpеd 47.5 percent, and the value of Afriyie’s call options investment increased by 6,000 percent. Afriyie’s sale of the options over the following week netted him a profit of $1,564,071.60. Later, Afriyie changed the name on his brokerage account to his mother’s name and, on several phone calls with TD Ameritrade about the account, pretended to be his mother.
Federal prosecutors in the Southern District of New York and SEC regulators
In Afriyie’s two earlier appeals, we upheld his criminal convictions and the civil judgment. Afriyie I, 929 F.3d at 66 (criminal); SEC v. Afriyie, 788 F. App’x at 60-61 (civil). Today our task is narrower: We review only Afriyie’s criminal restitution bill. The restitution request MSD submitted before Afriyie’s sentencing covered fees it paid lawyers at Sullivan & Cromwell during the USAO and SEC investigations, the criminal proceedings, and MSD’s own investigation of Afriyie.
More than a hundred pages of timesheets and invoices showed how Sullivan & Cromwell responded on MSD’s behalf to three subpoenas from the SEC, two criminal trial subpoenas from Afriyie, and numerous requests for documents and information from the USAO and SEC. The firm produced more than 54,700 pages of documents and data in response to these requests. It also mоnitored the progress of the criminal proceedings and the SEC enforcement action; at the USAO’s invitation, helped prepare four MSD employees to testify at Afriyie’s criminal trial; and represented MSD during post-verdict restitution proceedings. All told, Sullivan & Cromwell produced roughly 1,200 hours of work for MSD. Its fees, which MSD paid fully and for which it sought reimbursement from Afriyie, totaled $691,046.42.
At sentencing, the district court ordered Afriyie to reimburse MSD for the full $691,046.42. A few months later, that figure was lowered to $663,028.92 after excising Sullivan & Cromwell’s billings for “bare attendance at proceedings in Afriyie’s case,” App’x at 40, 42, following a decision from this Court clarifying that such expenses generally are not cognizable under the MVRA, see United States v. Cuti, 708 F. App’x 21, 25 (2d Cir. 2017).
Then, in our July 2019 ruling affirming Afriyie’s convictions, we remanded for the district court to recalculate restitution yet again—this time in light of the intervening Supreme Court decision in Lagos prohibiting the recovery of internal investigation expenses. Afriyie I, 929 F.3d at 74 (citing Lagos, 138 S. Ct. at 1688-89). On remand, the government and MSD voluntarily cut $151,660 from the restitution request, excising Sullivan & Cromwell’s fees related to MSD’s internal investigation. But they urged that Afriyie remain responsible for the remaining $511,368.92, which covered three other categories of work done by Sullivan & Cromwell:
- Category 1: Responding to subpoenas and document requests from the USAO and the SEC;
- Category 2: Preparing the four MSD witnesses to testify at Afriyie’s criminal trial; and
- Category 3: Representing MSD in connection with the post-verdict restitution proceedings.
The district court ordered Afriyie to reimburse MSD for all three categories of expenses, concluding that “[r]estitution for fees and expenses incurred in each . . . categor[y] is consistent with the MVRA as construed in Lagos.” United States v. Afriyie, 16-CR-377 (PAE), 2020 WL 634425, at *2 (S.D.N.Y. Feb. 11, 2020). Afriyie disagreed and took this appeal.
DISCUSSION
“Any dispute as to the proper amount or type of restitution shall be resolved by the [district] court by the preponderance
Afriyie does not challenge that MSD, from whom he misappropriated inside information, is a victim covered by the MVRA. Nor does Afriyie contest that his crimes of conviction, securities fraud and wire fraud, are covered offenses.1 Rather, the parties’ only dispute is whether the fees MSD paid Sullivan & Cromwell during the civil investigation and the criminal investigation, trial, and sentencing are covered expenses. To answer that question, we must clarify a pair of legal issues: first, whether, in light of the Supreme Court’s ruling in Lagos, a victim may ever recover attorneys’ fees under the MVRA; and second, whether a victim may recover expenses it incurred while participating in an SEC investigation. We then address the district court’s factual findings to determine whether it abused its discretion when calculating MSD’s restitution.
I. Whether, After Lagos, Attorneys’ Fees May Be “Other Expenses” Under the MVRA.
The MVRA limits recoverable expenses to “lost income and necessary child care, transportation, and other expenses.”
A.
We begin by briefly reviewing Amato and Lagos.
Amato addressed a district court’s order that two defendants convicted of mail fraud and wire fraud reimburse their corporate victim for attorneys’ fees and accounting costs the corporation incurred while participating in the criminal investigation and prosecution of the defendants and while conducting its own investigation of the defendants. 540 F.3d at 156, 162. The case raised a question of first impression in our Circuit whether “the term ‘other expenses’ in
In so ruling, we rejected the defendants’ invocation of ejusdem generis. Under this canon of statutory construction, “general terms that follow specific ones are interpreted to embrace only objects of the same kind or class as the specific ones.” Id. The defendants argued that “other expenses” could not include attorneys’ fees because they are not sufficiently “similar in nature to” lost income, child care, and travel expenses. We disagreed. Sometimes, we observed, Congress uses “specific terms not to limit the succeeding general ones, but instead simply to remove any doubt that the specific terms are included under the statute.” Id. at 161 (discussing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 (2008)). The MVRA’s drafters, for instance, “may have feared that courts would overlook child care and transportation expenses unless these items were specifically named.” Id. By contrast, “[s]uch fears would not likely have extended to attorney fees and accounting costs because these expenses are so obviously associated with investigation and prosecution, particularly in the case of fraud offenses.” Id.
By allowing the victim to recover all its expenses, Amato thus held that (1) the “necessary . . . other expenses” a victim could recover include attorneys’ fees and accounting costs, and (2) a victim could recover expenses (attorneys’ fees or otherwise) incurred while participating not only in a government investigation and prosecution, but also the victim’s own investigation of the conduct underlying the offense. Id. at 159-63.
A circuit split soon developed around Amato’s second holding. Several circuits agreed with us that the MVRA allowed a victim to recover costs from a private investigation. See United States v. Elson, 577 F.3d 713, 726-29 (6th Cir. 2009); United States v. Hosking, 567 F.3d 329, 331-32 (7th Cir. 2009); United States v. Stennis-Williams, 557 F.3d 927, 930 (8th Cir. 2009); United States v. Gordon, 393 F.3d 1044, 1056-57 (9th Cir. 2004). The D.C. Circuit disagreed. United States v. Papagno, 639 F.3d 1093, 1100 (D.C. Cir. 2011).
In Lagos, the Supreme Court sided with the D.C. Circuit. The Court held that “the words ‘investigation’ and ‘proceedings’” in the MVRA are “limited to government investigations and criminal proceedings.” Lagos, 138 S. Ct. at 1687. Consequently, the victim in Lagos—General Electric, which had been defrauded out of tens of millions of dollars by a company it had lent money to—could not recover the attorneys’, accountants’, and consulting fees it expended while investigating the fraud and while participating in bankruptcy proceedings tangential to its defrauder’s prosecution. Id. at 1687-88.
To reach its conclusion, the Court parsed the MVRA’s “wording, both its individual words and the text taken as a whole.” Id. at 1688. Because the statute pairs investigation with prosecution, the two things must be “of the same general type.” Id. And because the word prosecution means “a government’s criminal prosecution,” this “suggests that the word ‘investigation’ may refer to a government’s criminal investigation.” Id. A “similar line of reasoning” suggested to the Court that the word “proceedings” refers to “criminal procеedings in particular, rather than to ‘proceedings’ of any sort.” Id.
Finally, the Court was persuaded that a broad interpretation of “investigation” and “proceedings” would “create significant administrative burdens” that Congress likely did not intend. Id. at 1689. The Court’s “narrower construction” purported to avoid “requir[ing] courts to resolve . . . time-consuming controversies” about whether particular expenses incurred during participation in a private investigation were in fact necessary and whether civil proceedings were sufficiently related to the offense of conviction. Id.
B.
The parties agree Lagos abrogated Amato’s second holding: It is now clear that expenses incurred during a corporate victim’s internal investigation of the defendant are not covered by the MVRA. That is why the government and MSD disclaimed restitution for Sullivan & Cromwell’s fees for running MSD’s internal investigation. But the parties dispute what Lagos did to Amato’s first holding: that attorneys’ fees incurred while participating in a government investigation are recoverable. Afriyie argues that Lagos provides a basis for abandoning this rule. It does not.
Published panel decisions like Amato are binding on future panels unless they are “reversed en banc or by the Supreme Court.” United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). “[T]here is an exception to this general rule when an ‘intervening Supreme Court decision . . . casts doubt on our controlling precedent.’” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) (ellipses in original) (quoting Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007)). For the exception to apply, “the intervening decision need not address the precise issue already decided by our Court,” but there must be a “conflict, incompatibility, or inconsistency between this Circuit’s precedent and the intervening Supreme Court decisiоn.” Id. at 155 (internal alterations and citations omitted). We approach this inquiry humbly, cognizant that “one panel’s overruling of the holding of a case decided by a previous panel is perilous,” can “degrade the expectation of litigants, who routinely rely on the authoritative stature of the Court’s panel opinions,” and may “diminish[] respect for the authority of three-judge panel decisions and opinions[,] by which the overwhelming majority of our work . . . is accomplished.” Id. at 157.
As an initial matter, Amato’s attorneys’-fees rule has not been “reversed en banc or by the Supreme Court.” Jass, 569 F.3d at 58. Lagos addressed only the kinds of investigations and proceedings covered by the MVRA, not the categories of expenses recoverable pursuant to covered investigations and proceedings. Afriyie recognizes this.
Nоr can we find the “conflict, incompatibility, or inconsistency” between Lagos and Amato’s attorneys’-fees rule necessary
Not so. To be sure, Lagos prohibits victims from recovering attorneys’ fees for a “private investigation that the victim chooses on its own to conduct.” Id. at 1690. But that is because the statute is “limited to government investigations and criminal proceedings,” id. at 1687, not because it categorically excludes attorneys’ fees. Lagos did not even rule out a victim recovering attorneys’ fees and accounting costs “incurred during a private investigation that was pursued at a government’s invitation or request.” Id. at 1690.
Lagos therefore does not displace Amato’s commonsense recognition that attorneys’ fees are sometimes “necessary . . . expenses incurred” to properly participate in a government investigation. This case proves Amato’s point. As part of its “participation in the investigation [and] prosecution” of Afriyie’s insider trading, MSD had to respond to numerous subpoenas and document requests from the government and Afriyie’s attorneys—and needed counsеl to appropriately respond. Like the law firm in Amato, Sullivan & Cromwell “represented [MSD] at meetings with the government and assisted in gathering and producing evidence necessary to the government’s prosecution, as well as responding to document requests made by the defendants.” Amato, 540 F.3d at 162. The firm advised MSD on its document retention obligations; communicated with the USAO and Afriyie; collected responsive materials; reviewed those materials for responsiveness and privilege; and produced almost 55,000 pages of documents and data. It beggars reality to say that the money MSD spent on its attorneys did not constitute “expenses [MSD] was required to incur to advance the
investigation or prosecution of the offense.” United States v. Maynard, 743 F.3d 374, 381 (2d Cir. 2014).2 People use lawyers to help them comply with legal demands. By allowing victims like MSD to recover “necessary . . . other expenses” beyond lost income, child care, and transportation, the MVRA’s “plain language” acknowledges this. Amato, 540 F.3d at 160. Lagos is not to the contrary.
Nor does Lagos’s concern about administrative burdens require us to discard our attorneys’-fees rule. Afriyie objects that Sullivan & Cromwell’s “submission of over a hundred pages of bills” required the district court to grapple with “tedious and debatable details.” Appellant’s Br. at 10. According to Afriyie, the district court’s review of these bills brought to fruition Lagos’s concern about district courts deciding “whether each witness interview and each set of documents reviewed was really ‘necessary’ to the investigation.” Lagos, 138 S. Ct. at 1689.
Finally, we find nothing in other circuits’ post-Lagos case law to undermine our adherence to Amato’s attorneys’-fees rule. Afriyie urges us to follow United States v. Koutsostamatis, 956 F.3d 301 (5th Cir. 2020). There, the Fifth Circuit considered whether to award British Petroleum restitution under the
Afriyie’s reliance on Koutsostamatis is unavailing. The case did not “involve[] . . . legal fees.” Id. at 311 n.4. The somewhat unusual expense at issue in Koutsostamatis is a far cry from the routine attorneys’ fees at issue in this case. And to the extent the Fifth Circuit’s embrace of ejusdem generis puts it at odds with Amato, we are of course not bound to reject our well-considered precedents in favor of another circuit’s.3
In sum, we conclude that Lagos “neither overruled . . . nor cast doubt on” Amato’s attorneys’-fees rule such “that we are free to chart a new course here.” Deem v. DiMella-Deem, 941 F.3d 618, 623-24 (2d Cir. 2019). It remains the law of this Circuit that “other expenses” may include attorneys’ fees.
II. Whether Expenses Incurred Through Participation in an SEC Investigation Are Recoverable Under the MVRA.
Expenses incurred through an SEC investigation or other non-criminal matter, however, stand on a different footing. The district court concluded that MSD could recover for Sullivan & Cromwell’s SEC work because “the USAO and SEC investigations were parallel, coextensive, and symbiotic.” Afriyie, 2020 WL 634425, at *2. “[A]ny other result,” the district court explained at sentencing, “would draw an ‘artificial and unrealistic distinction’ between the two investigations[.]” App’x at 35-36 (quoting United States v. Skowron, 839 F. Supp. 2d 740, 749 (S.D.N.Y. 2012)).
To be sure, Lagos alone does not mandate this conclusion. That case held that “investigation” means “government investigation[],” id. at 1687, and SEC investigations are governmental. But because only private investigations were at issue in Lagos, the Court was not asked, as we are now, whether all government investigations are alike. And we note that, in explaining why private investigations are excluded, the Court did offer as a “perfectly natural” reading of the statute the holding we now reach: that “a victim ‘participat[es] in the investigation’ or ‘attend[s] . . . proceedings related to the offense’ if the investigation at issue is a government’s criminal investigation, and if the proceedings at issue are criminal proceedings conductеd by a government.” Id. at 1688 (alterations in original). “[W]e are obligated to accord great deference to Supreme Court dicta” like this, United States v. Harris, 838 F.3d 98, 107 (2d Cir. 2016) (internal quotation marks omitted)—especially where, as here, we have no precedent in our own Circuit to guide us.
No less importantly, Lagos sharpens our focus on the
We find none of the arguments to the contrary persuasive. First, SEC investigations may at first appear to have a stronger textual hook than private investigations did in Lagos. For instance, while one does not “participate” in private investigations so much as “conduct” or “provide for” them, see Lagos, 138 S. Ct. at 1688, one can bе said to “participate” in an SEC investigation by, for instance, responding to subpoenas and document requests. And it initially might be thought that an SEC investigation is an “investigation . . . of the
The problem with these arguments is that while a victim certainly may “participate” in an SEC investigation, we do not think an SEC investigation can be an “investigation . . . of the offense.” Nothing in the
We are also unpersuaded that cоordination between USAO and SEC investigations renders SEC expenses recoverable. The government points out that Sullivan & Cromwell generally made simultaneous productions to the USAO and the SEC. Gov’t Br. at 24-25. On this basis, it urges that the district court did not abuse its discretion in determining that the expenses incurred in responding to nearly identical USAO and SEC document requests were “necessary” expenses. But the government conflates two distinct inquiries. Before determining whether an expense was necessary, we must determine whether it was incurred pursuant to an investigation covered by the statute. And, for the reasons above, we conclude as a matter of statutory interpretation that when the
Still, we add a practical note. Our ruling will require the district court to again review Sullivan & Cromwell’s timesheets. See App’x at 58-163. The government notes that some time entries reflect work on both the civil and criminal investigations.5 Of course, there are also numerous entries reflecting work Sullivan & Cromwell did solely in connection with the SEC investigation.6 We reiterate that although the fees for the law firm’s work on the SEC investigation are not recoverable, the fees for the firm’s work on the USAO investigation are.
We trust the district court to devise a reasonable solution concerning these commingled billing items when recalculating MSD’s recovery.
Two rules—one old, one new—emerge frоm the discussion above. First, a victim may recover attorneys’ fees it was required to incur to advance the investigation or prosecution of the offense. But second, only criminal investigations—not private investigations, and not civil enforcement investigations—qualify. With these rules in mind, we turn to Afriyie’s restitution order. “We review a restitution order ‘deferentially, and we will reverse only for abuse of discretion.’” Razzouk, 984 F.3d at 185 (quoting United States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)). “Such abuse can be found only where the challenged ruling rests on an error of law [or] a clearly erroneous finding of fact, or otherwise can not be located within the range of permissible decisions.” United States v. Qurashi, 634 F.3d 699, 701 (2d Cir. 2011) (internal quotation marks omitted).
Afriyie was ordered to pay MSD $511,368.92 for three categories of expenses. Categоry 1 covered Sullivan & Cromwell’s work responding to subpoenas and document requests from the USAO and the SEC. Category 2 covered the law firm’s work preparing MSD witnesses to testify at Afriyie’s criminal trial. Category 3 covered the law firm’s representation of MSD in connection with post-verdict restitution proceedings.
We affirm as to the Category 1 expenses to the extent they involved the USAO investigation. As attorneys’ fees, these expenses are cognizable “other expenses.”
We reject Afriyie’s challenges to the Category 2 and Category 3 expenses. Afriyie objects, as to the Category 2 expenses, that whereas MSD had no choice but to respond to subpoenas from the USAO, it was not necessary for Sullivan & Cromwell to prepare MSD’s witnesses for trial. The distriсt court disagreed. At sentencing, it found by a preponderance of the evidence that Sullivan & Cromwell’s fees for helping prepare MSD witnesses “were a direct, foreseeable, and necessary result of the government’s investigations into and the prosecution of Mr. Afriyie.” App’x at 34.
We agree with the district court. Afriyie does not dispute that prosecutors called four MSD employees to testify as trial witnesses in criminal “proceedings related to the offense” of conviction, or that the preparation of these witnesses occurred “during participation in the investigation or prosecution of the offense.”
Finally, we affirm as to Category 3: MSD’s expenses for Sullivan & Cromwell’s work during the post-verdict restitution proceedings. As a textual matter, expenses like these are subject to recovery
CONCLUSION
For the reasons above, we affirm in part and vacate in part the district court’s amended restitution order, and we remand for further proceedings consistent with this opinion.